Medicare Whistleblower

Medicare & Medicaid Fraud

The False Claims Act allows whistleblowers who blow the whistle properly to claim up to 30% of what the government recovers as a Medicare Whistleblower Award.  It is estimated that there are hundreds of billions of dollars a year lost due to fraud, which means whistleblowers could stand to receive aggregate awards in the billions if they file a qui tam lawsuit with the right whistleblower law firm. For example, according to Government estimates, improper payments to healthcare professionals through Medicare and Medicaid exceeded $130 Billion in 2020. Significant sums of taxpayer dollars—up to 10 percent of all healthcare expenditures nationally, by some estimates—go to health care providers that cheat billions of dollars from federal and state health insurance programs.

Call now for a free confidential consultation with an experienced Brown, LLC lawyer at (877) 561-0000 or Report Online

Report Online

Those who work in the healthcare industry know that it’s not just the taxpayers who are being cheated; it’s the patients too, as some fraudulent conduct can and does lead to real patient harm. The Medicare and Medicaid programs depend on whistleblowers with integrity stepping forward to blow the whistle to combat systemic fraud. It’s important to learn your rights if you’re thinking about blowing the whistle on Medicare fraud or Medicaid fraud – speak with a whistleblower law firm with experience fighting Medicare fraud and Medicaid fraud.

What is Medicare Fraud?

Medicare and Medicaid are government health insurance programs. Medicare is a federal health insurance program for people over 65, or certain younger people who have disabilities, or people with end-stage renal disease, otherwise known as ESRD. Medicaid is a joint federal/state program that covers medical expenses for low-income individuals. Medicaid provides health coverage to millions of Americans, including eligible low-income adults, children, pregnant women, elderly adults and people with disabilities. Medicaid is administered by states, according to federal requirements, and funded jointly by states and the federal government.

Because Medicare and Medicaid cannot review every single claim that is submitted before making payment, the Government places enormous trust in doctors and other healthcare providers to submit accurate and truthful claims. Indeed, “the Government’s payment of claims is generally based solely on the provider’s representations in the claims documents.” The sobering reality is that many providers are willing to bend, and even break, the rules to increase their profits.

There are several common types of Medicare & Medicaid fraud: Upcoding & Unbundling, Billing for Non-existent or Unnecessary Services, Kickbacks, Pharmaceutical Fraud, and Telehealth Fraud – but there’s no end to the ways that healthcare providers systemically cheat the government.  So, if you see something that could be billing fraud, you should learn you have a free consultation with a Medicare fraud law firm or a Medicaid fraud law firm depending on the situation to understand your rights as a potential whistleblower. Medicare fraud and Medicaid fraud law firms will also help you understand your potential liability if you continue to work in an environment with rampant fraud versus the chance of obtaining a Medicare whistleblower award if you blow the whistle the right way.

Upcoding & Unbundling

“Upcoding” refers to the submission of false or improper billing codes to obtain higher reimbursement from Medicare & Medicaid. Healthcare providers can upcode by making a false diagnosis for a more serious condition, exaggerating the amount of time they spent with patients, or billing for more expensive procedures than they provided.

A tell-tale sign of upcoding is if a provider automatically selects the highest level of service that can be billed, regardless of the individual needs of each patient. Another indicator of upcoding is missing or inadequate clinical documentation. As the maxim goes, “If it wasn’t documented, it didn’t happen.”

A violation similar to upcoding is called “unbundling.” Many medical services are supposed to be “bundled” together so that the healthcare provider receives only one lump sum payment for related procedures under one billing code. By splitting up these services into different codes, healthcare providers can illegally obtain duplicative payments from the government, that should have been paid in one bundle.  Also, if interrelated services are provided in the same timeframe, they should generally be covered by one reimbursement, so some providers fraudulently falsely separate out services over several days and bill as if they were provided in different timeframes, even though they were performed the same day,  to receive a larger reimbursement.  Some providers wrongly see these rules as just bureaucratic red tape, but disregarding coding rules solely to increase reimbursement constitutes Medicare fraud and/or Medicaid fraud.

Billing for Services Not Rendered or Not Medically Necessary

To be covered by Medicare & Medicaid, medical services and procedures require a doctor’s order attesting to the medical necessity of such services, and a significant amount of Medicare/Medicaid fraud involves the billing of medically unnecessary services, such as pointless diagnostic tests like ultrasounds or x-rays, or unneeded durable medical equipment (DME) like back and knee braces. In more egregious cases, doctors have actually performed unnecessary procedures and even unnecessary surgery!  Conduct in which patients’ insurance plans are used as nothing but checkbooks and the well-being of the patient is sacrificed to profits is of particular interest to government investigators.  Taxpayer harm is bad enough, but actual patient harm can (and should) trigger criminal as well as civil liability.

Another common Medicare fraud scheme is the use of remote doctors to sign orders and prescriptions for expensive medications, services and/or equipment, even though the doctors never see the patient. In July 2022, the Office of the Inspector General for the Department of Health and Human Services announced that the Government was investigating dozens of companies that paid physicians to “generate orders or prescriptions for medically unnecessary durable medical equipment, genetic testing, wound care items, or prescription medications.”

Incident-to Billing Fraud

Generally, Medicare pays non-physician providers (NPPs), such as nurse practitioners and physician assistants, at a rate lower than what a physician would receive for the same type of care. But if the NPP’s care is “incident to” the care provided by a physician, the NPP can bill their services as though performed by the physician, to obtain the higher reimbursement rate. This is known as “incident-to billing.”

One key requirement of “incident-to billing” is that there be “direct supervision” of the NPP by the physician. This requires the supervising physician to be “present in the office suite and immediately available to provide assistance and direction throughout the time the aide is performing services.”

Many clinics and medical practices, including urgent care and family medicine practices, are staffed solely by nurse practitioners or physician assistants without a physician present on the premises. Even in doctors’ offices staffed by both physicians and nurses, the physicians may not always be present to supervise. If those nurses then bill their services as “incident to” a physician’s services even when the physician was not present, they would be violating incident-to rules and thereby committing Medicare fraud. As an example, in 2018, a dermatology practice in New York agreed to pay more than $811,000 to resolve incident-to billing fraud claims.

Kickbacks & Physician Self-Referrals

Kickbacks are bribes paid in exchange for patient referrals to specific providers or facilities, or even a specific manufacturer of a drug or durable medical equipment. The offering, making, and receiving of any such kickbacks are prohibited by the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, and submitting any claims for services tainted by a kickback constitutes Medicare and Medicaid fraud.

Similar to a kickback, a self-referral occurs when a physician refers a patient to a provider or entity that the physician has a financial relationship with. In such circumstances, the physician may have a financial incentive to refer patients to that entity or other provider. Physician self-referrals are proscribed by the Stark Law, 42 U.S.C. §§ 1395nn and 1396b(s).

You can read more on our Kickbacks page.

Pharmaceutical Fraud

Pharmaceutical companies do some wonderful things, but they sometimes cross the boundary between legal and illegal conduct in pursuit of profit. Pharmaceutical companies pay physicians kickbacks, including lavish meals and compensation for “speaker programs,” to endorse and prescribe their companies’ drugs to patients.  Pharmaceutical companies also sometimes advertise and market their drugs for various “off-label” uses, which are not approved by the Food and Drug Administration (FDA). Off-label uses are often experimental, not supported by long-term clinical studies, and pose safety risks for patients. Inducing providers to prescribe drugs for unapproved uses through illegal kickbacks can be the basis for False Claims Act (FCA) liability for Medicare & Medicaid fraud.

Pharma fraud cases under the FCA have reached eye-popping recoveries. In 2020, Novartis agreed to pay over $642 million to resolve claims that it violated the Anti-Kickback Statute. Similarly, in 2022, Biogen settled kickback allegations for $900 million.

You can read more on our Pharmaceutical fraud lawyer page.

Telehealth Fraud

CMS greatly expanded access to telehealth services during the pandemic by lifting traditional restrictions and adding new types of telehealth services covered by Medicare and Medicaid. According to one study, the number of telehealth visits for Medicare beneficiaries jumped from 840,000 visits in 2019 to more than 52 million visits in 2020.

With this boom in popularity, telehealth fraud is also more prevalent. Common types of telehealth fraud include billing for telehealth office visits when there was no live interaction between patient and provider, billing multiple telehealth services over consecutive days, and upcoding the level of service provided. Telehealth also continues to play a critical role in DME fraud where remote physicians are paid kickbacks to sign orders for unnecessary equipment or services.

For more details on specific types of Medicare fraud and abuse, visit our Healthcare Fraud page.

Report Online

8 Steps to Report Medicare Fraud and Abuse

As a Medicare fraud whistleblower, reporting Medicare fraud and abuse is not only the right thing to do but also necessary to protect patients and the integrity of the Medicare program. However, knowing how to report Medicare fraud and abuse can be complex and intimidating, especially for those unfamiliar with the healthcare industry and the legal system.

This section details the critical steps and considerations for reporting, emphasizing legal compliance, protecting whistleblower rights, and the potential for receiving a whistleblower award. 

1. Understand Fraud and Abuse

Get to know the full scope of what constitutes Medicare and Medicaid fraud and abuse. Examples include billing for services or supplies that were never provided, unnecessary medical services, and altering medical records to support false claims. It’s important to differentiate between the two, as both play significant roles in spotting fraudulent behavior and abuse in the system.

2. Gather Evidence

Gathering evidence of Medicare fraud the right way may be essential in establishing your case. However, before collecting any evidence, it’s imperative to consult with a specialized whistleblower law firm. This step ensures you gather evidence legally and ethically. 

As a whistleblower, Medicaid fraud law firms or Medicare fraud law firms can provide guidance on gathering evidence that complies with the law and protects your rights as a whistleblower. Ideal evidence may include detailed medical records, billing documents, emails, and witness statements. There are exceptions to HIPAA that allow the gathering of Protected Health Information (PHI). To protect your rights, a law firm experienced in handling Medicare whistleblowers and Medicaid whistleblowers will guide you in assembling a compelling case.

3. Select a Whistleblower Law Firm

The choice of legal representation can significantly impact the outcome of your report. Early legal counsel is crucial for protecting your rights as a whistleblower and ensuring you’re recognized as the original source of the information. Accomplished firms like Brown, LLC, with a proven track record in False Claims Act cases, offer confidential consultations to help you navigate this complex process. If you’re interested in a Medicare fraud whistleblower award, we will help you submit a Medicaid or Medicare fraud report the right way through the False Claims Act which requires the use of an attorney.

4. Collaborate with Your Attorney

Discuss your allegations and evidence with your chosen firm in this critical phase. Your attorney will thoroughly review your evidence, helping you understand the strengths and weaknesses of your case. They will also advise you on the best course of action, be it reporting the fraud and abuse to authorities or filing a lawsuit under the False Claims Act.

5. File a Whistleblower Complaint

If you decide to proceed with a False Claims Act complaint, your attorney will draft and file it on your behalf. This complaint will detail your Medicare fraud and abuse allegations, supported by the evidence gathered. While maintaining confidentiality by initially filing the case secretly under seal, your attorney will ensure the complaint is submitted to the appropriate authorities, such as the Department of Justice or the Office of Inspector General. However, at some point, generally a few years down the road, your identity will in all likelihood be disclosed. 

6. Cooperate in Investigations

After filing your complaint, cooperate fully with the investigation by providing any additional evidence or information requested. Your whistleblower law firm will prepare you for government interviews and ensure timely responses to follow-up requests from the authorities.

7. Be Proactive in Planning

A major concern for many Medicare fraud whistleblowers is employer retaliation. The False Claims Act provides measures to combat retaliation, but being proactive in planning for potential outcomes when the lawsuit becomes public is crucial. This includes decisions about remaining with or leaving an employer involved in fraudulent activities. Generally, you’ll have a couple of years to plan before your identity is disclosed so you can work on having a comfortable parachute with other job opportunities if you’re looking to leave. 

8. Receive a Whistleblower Award

Should the government successfully recover funds based on your report, you may receive up to 30% of the amount recovered. Your attorney will assist in negotiating the terms of your award so you are justly compensated for your role in exposing Medicare fraud and abuse.

Reporting Medicare fraud and abuse is critical to protect healthcare integrity and public funds. With legal assistance from a whistleblower law firm with a track record of success like Brown, LLC, Medicare whistleblowers are indispensable in the fight against fraud. When you spot Medicare fraud, don’t hesitate to take action. By acting quickly, whistleblowers not only uphold ethical standards but also stand to gain substantial rewards for their efforts. Delay may result in you not being the first to file which could mean you wind up with nothing for your efforts or worse, the government may view you as a bad actor for failure to report in a timely manner – all of these considerations should be discussed with your qui tam law firm. 

Whistleblowers who report Medicare and Medicaid fraud the right way can receive monetary awards under the False Claims Act. To learn more about your rights as a potential Medicare fraud whistleblower or Medicaid fraud whistleblower, you should speak with an experienced qui tam Medicare fraud law firm like Brown, LLC. Led by a former FBI Special Agent, Brown, LLC has recovered hundreds of millions of dollars, although past results don’t guarantee future success. Learn your rights – call today for a free and confidential whistleblower consultation.

Call now for a free confidential consultation with an experienced Brown, LLC lawyer at (877) 561-0000 or Report Online. 

FAQs on Medicare Fraud Whistleblowing

If you’re considering blowing the whistle on Medicare fraud or abuse, you need to understand your rights, protections, and potential rewards. Here are some of the most common questions about reporting Medicare fraud and abuse.

Can whistleblowers remain anonymous? 

Initially, yes. Filing under the False Claims Act ensures confidentiality during the investigation phase. This helps protect the whistleblower from retaliation or other negative consequences. However, at some point, your identity will be disclosed.  There are other more elegant options to try to stay anonymous from start to finish like using a dummy corporation or a straw realtor, but for each option, there’s a risk.

How do you address Medicare fraud? 

Be vigilant in recognizing signs of fraud, such as billing discrepancies and kickbacks. Reporting directly to the government may not entitle you to a reward; a legal consultation is strongly advised.

How is Medicare fraud determined? 

Investigations involve thorough data analysis, witness interviews, and sometimes undercover operations, typically led by the Department of Justice and other agencies. The DOJ relies on insiders to provide visibility into the illegal practices to trigger the investigation, so the role of the whistleblower is essential in unearthing the fraud.

What are examples of Medicare fraud and abuse? 

Common examples include billing for services not provided, unnecessary medical services, off-label promotion of pharmaceutical products, self-dealing and kickbacks. Each case often has unique characteristics that require expert legal analysis.

What whistleblower rewards are available? 

In successful cases, whistleblowers can receive 15-30% of the total recovery. It’s also worth noting that a Medicare or Medicaid whistleblower who files qui tam lawsuits may be eligible for other types of compensation, including lost wages or damages resulting from any retaliation.